Administration Fights Disclosure on Two Fronts

According to veteran CIA analyst Melvin Goodman, Leon Panetta has become entrenched in CIA bureaucracy. "It is obvious Panetta wants to make no waves at the CIA," Goodman said. (Photo: Getty Images)

Last month, the CIA told a federal court judge it could not abide by a court
order and turn over detailed documents about the destruction of 92 interrogation
videotapes because it would compromise the integrity of a special prosecutor's
criminal investigation into the matter.

US District Court Judge Alvin Hellerstein responded by demanding a sworn declaration
from special counsel John Durham confirming that to be the case. In a subsequent
court filing, Lev Dassin, acting US attorney for the Southern District of New
York, backtracked and said the CIA would no longer rely on that argument.

Dassin added, however, that a "senior government official" would
soon submit a declaration explaining why detailed documents related to the videotaped
interrogations should not be turned over to the American Civil Liberties Union
(ACLU).

In previous court filings, the CIA disclosed that 12 of the 92 videotaped interrogations
depict CIA interrogators subjecting Abu Zubaydah, the first "high-value"
detainee, and Abd al-Rahim al-Nashiri, the alleged mastermind of the attack
on the USS Cole in 2000, to brutal interrogation methods, including waterboarding.

The 80 other videotapes purportedly show Zubaydah and al-Nashiri in their prison
cells. But it's unknown whether the interrogation tapes that predate the August
1, 2002 "torture" memo depict "enhanced interrogation" techniques
not yet approved by the Justice Department.

Late Monday, the identity of the "senior government official" was
revealed.

In a 24-page sworn declaration,
CIA Director Leon Panetta said the documents sought by the ACLU in a long-running
Freedom of Information Act (FOIA) lawsuit the civil liberties organization filed
against the Bush administration must be withheld in the interest of national
security.

The documents at issue, according to a description of the materials that accompanied
Panetta's declaration, are a photograph of Zubaydah, who was waterboarded 83
times during the month of August 2002 at a secret CIA "black site"
prison; notes drafted after the videotaped interrogations were viewed; emails
that raise questions about how the destruction of the tapes should be explained
publicly; and other internal communications about the policies and legal guidance
related to the videotaped interrogations and their destruction.

Panetta argued that the documents should not be disclosed because it contains
top-secret information about the use of specific interrogation techniques, as
opposed to abstract information about the legal justification to use those methods
that were included in Office of Legal Counsel (OLC) memos released in April.

"The information in these documents would provide future terrorists with
a guidebook on how to evade such questioning," Panetta's declaration said.
"Additionally, disclosure of explicit details of specific interrogations
where [enhanced interrogation techniques] were applied would provide al-Qa'ida
with propaganda it could use to recruit and raise funds.

The ACLU was harshly critical of Panetta's argument.

"The CIA's withholding of documents because they might be used as propaganda
would justify the greatest governmental suppression of the worst governmental
misconduct. If we accept the CIA's rationale, the government could, for example,
suppress any document discussing torture, Abu Ghraib or Guantanamo Bay,"
said Alex Abdo, a fellow with the ACLU National Security Project. "Certain
governmental information must of course remain classified for security reasons,
but terrorists should not have a veto power over what the public is allowed
to know about governmental misconduct."

In December 2007, the ACLU filed a motion to hold the CIA in contempt for its
destruction of the tapes in violation of a court order requiring the agency
to produce or identify all records requested by the ACLU related to the CIA's
interrogation of "war on terror" detainees.

Last month, the CIA turned over indexes to the ACLU that showed how CIA interrogators
provided top agency officials in Langley with daily "torture" updates
of Zubaydah during the month of August 2002. The extensive back and forth between
CIA field operatives and agency officials in Langley likely included updates
provided to senior Bush administration officials.

The CIA and the Justice Department declined to turn over a more detailed description
of the cables its field agents sent back to headquarters, citing several exemptions
under the FOIA, which Panetta further elaborated on in his declaration.

The agency had said it withheld a detailed description of the cables because
it "contains information relating to intelligence sources and intelligence
methods that is specifically exempted from disclosure" in accordance with
the National Security Act. The documents also contain "information relating
to the organization, functions, and names of person employed by the CIA that
is specifically exempted from disclosure."

Some of those cables are included in the 580 documents Panetta asked Judge
Hellerstein to authorize the agency to keep under wraps. The CIA has identified
a sampling of 65 of those documents that it prepared for review and possible
release that Panetta told Hellerstein must be withheld to protect national security.

"Al Qa'ida has a very effective propaganda operation. When the abuse of
Iraqi detainees at the Abu Ghraib prison was disclosed, al-Qa'ida made very
effective use of that information in extremist websites that recruit jihadists
and solicit financial support. Information concerning the details of the [enhanced
interrogation techniques] being applied would provide ready-made ammunition
for al-Qa'ida propaganda.

"The resultant damage to national security would likely be exceptionally
grave, and the withholding of this information is therefore proper under"
certain FOIA exemptions.

The Obama administration is applying the same argument - a threat to national
security - in explaining its reasons for not turning over to the ACLU 44 photographs
that depict US soldiers abusing detainees in Iraq and Afghanistan, despite the
fact that a detailed description of the photographs at issue have been publicly
available for some time.

In that case, the Obama administration is now going above and beyond what the
Bush administration had done in attempting to block the materials.

The administration is appealing the case to the Supreme Court and at the same
time looking to Congress to pass legislation to block release of the photographs.
Late Monday, Sens. Joe Lieberman and Lindsey Graham threatened to shut down
Congress if legislation they sponsored blocking the release of all photographs
showing US soldiers abusing prisoners is stripped from the Iraq/Afghanistan
war supplemental funding bill.

Both cases mark an about-face on the open-government policies that President
Obama proclaimed during his first days in office.

On January 21, he signed an executive order instructing all federal agencies
and departments to "adopt a presumption in favor" of FOIA requests
and promised to make the federal government more transparent.

"The Government should not keep information confidential merely because
public officials might be embarrassed by disclosure, because errors and failures
might be revealed, or because of speculative or abstract fears," Obama's
order said. "In responding to requests under the FOIA, executive branch
agenci?s should act promptly and in a spirit of cooperation, recognizing that
such agencies are servants of the public."

It's becoming increasingly clear that after the disclosure of the "torture
memos" in April and the backlash that ensued, that Obama is aiming to avoid
further criticism by continuing the Bush administration's era of secrecy.

The argument Panetta has laid out about the reasons the documents in the interrogation
tapes case should continue to be guarded by secrecy does not appear to be credible.

According to veteran CIA analyst Melvin Goodman, Panetta has become entrenched
in CIA bureaucracy.

"It is obvious Panetta wants to make no waves at the CIA," Goodman
said.

"It is extremely difficult for any outsider to make his mark within a
bureaucracy as parochial and insular as the one at CIA," said Goodman,
who spent more than two decades at the agency. "Panetta, unfortunately,
has tried to ingratiate himself with the negative elements. Panetta's first
mistake was to keep in place all of the holdovers from the era of George Tenet
and Porter Goss, who were responsible for the culture of cover-up created at
the CIA.

"In keeping Steven Kappes as the deputy director, Panetta signaled that
there would be no change at the Agency and no punishment for corruption,"
Goodman added. "Kappes, after all, was the ideological driver for those
policies that Obama and Panetta criticized before Panetta's confirmation. Instead
of reaching out to contrarians or dissidents from the intelligence community,
Panetta has relied solely on the leadership he inherited, the very people who
have a vested interest in making sure that nothing changes."

Panetta's about-face stands in stark contrast to statements he made in a series
of op-eds in the Monterey County Herald and other publications last year. In
a March 8, 2008, column titled "Americans Reject Fear Tactics," Panetta
wrote that "all forms of torture have long been prohibited by American
law and international treaties respected by Republican and Democratic presidents
alike."

"Our forefathers prohibited 'cruel and unusual punishment' because that
was how tyrants and despots ruled in the 1700's. They wanted an America that
was better than that. Torture is illegal, immoral, dangerous and counterproductive.
And yet, the president is using fear to trump the law."

While stopping short of demanding investigations and prosecutions, Panetta
certainly made it clear that Bush was acting above the law.

In a column published in the Washington Monthly last summer titled "No
Torture, No Exceptions," Panetta wrote, "there are certain lines Americans
will not cross because we respect the dignity of every human being. That pledge
was written into the oath of office given to every president, 'to preserve,
protect, and defend the Constitution.' It's what is supposed to make our leaders
different from every tyrant, dictator, or despot. We are sworn to govern by
the rule of law, not by brute force."